BVA9505329 DOCKET NO. 93-08 993 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an increased rating for residuals of frostbite of the feet, bilateral, currently evaluated at 10 percent. 2. Entitlement to service connection for tinnitus. 3. Whether new and material evidence has been submitted to reopen a claim for service connection for a bilateral hearing loss. 4. Entitlement to an increased evaluation for post-traumatic stress disorder (PTSD), currently evaluated at 10 percent. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Nancy R. Kegerreis, Associate Counsel INTRODUCTION The veteran served on active duty from June 1948 to June 1952. This matter comes before the Board of Veterans' Appeals (Board) from a June 1992 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which denied service connection for tinnitus, denied increased evaluations for residuals of frostbite of the feet and for post- traumatic stress disorder, and denied the reopening of a claim for service connection for bilateral hearing loss. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, essentially, that the residuals of frostbite of the feet warrant more than a 10 percent evaluation because the long term aftermath is a progressive condition that causes chronic pain and vascular failures, as well as other types of deterioration. He also contends that he should be service connected for tinnitus and for a hearing loss, stating that while awaiting evacuation from Korea, he had been positioned within 20 or 30 feet of several 155 mm. howitzers, which were firing constantly. In addition, he believes that he should receive an increased rating for PTSD since he was a combat veteran and still has nightmares and flashbacks of his experiences during the Korean War. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's claims for an increased evaluation for post-traumatic stress disorder (PTSD) and also for service connection for tinnitus, but that the evidence supports the assignment of a 30 percent evaluation for residuals of frostbite of the feet. It is further the decision of the Board that new and material evidence sufficient to reopen a claim for service connection for a bilateral hearing loss has not been submitted. Therefore, this claim must be denied. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. Residuals of frostbite of the feet are currently manifested by pain, tenderness, occasional swelling, redness, all toenails thick and yellow, roughness, and cracking. 3. Tinnitus, initially reported many years after service, is not shown to be related to any incident of service. 4. The RO denied service connection for hearing loss in May 1963, and the veteran did not appeal that decision. 5. Evidence associated with the claims file subsequent to the May 1963 decision is not relative or probative to the issue of service connection for a bilateral hearing loss and would not change the outcome of the case. 6. PTSD is currently manifested by nightmares and some anxiety, resulting in a mild impairment of social and industrial adaptability. CONCLUSIONS OF LAW 1. The criteria for a rating of 30 percent for residuals of frostbite of the feet, bilateral, have been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.104, Diagnostic Code 7122 (1994). 2. The veteran's tinnitus was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1994) 3. Evidence received subsequent to the May 1963 RO decision is not new and material, and the claim for service connection for a bilateral hearing loss has not been reopened. 38 U.S.C.A. §§ 5108, 7105(c) (West 1991); 38 C.F.R. §§ 3.156, 20.1103 (1994). 4. The schedular criteria for a disability rating greater than 10 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.125-4.131, 4.132, Diagnostic Code 9411 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). That is, the Board finds that he has presented a claim which is plausible. The Board is also satisfied that all relevant and available facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. The veteran was initially granted service connection for residuals of frozen feet in May 1963 with an evaluation of 10 percent, effective from March 1963. In the same decision, the RO denied service connection for impaired hearing of the right ear. When the veteran did not appeal the latter decision, it became final. In March 1985, the veteran requested that his claim for an increased evaluation for residuals of frozen feet be reopened, but the RO denied an increased evaluation in September 1985. The decision then was appealed to the Board, which denied an increased evaluation in June 1986. In February 1992, the veteran reopened his claim for an increased rating for frozen feet, filed an initial claim for service connection for PTSD, and attempted to reopen his claim for service connection for a bilateral hearing loss. By rating decision of June 1992, the RO inferred, but denied, a claim for service connection for tinnitus. In the same decision, it denied an increased evaluation for residuals of frozen feet, found that new and material evidence had not been submitted to reopen a claim for service connection for a hearing loss, and granted service connection for PTSD, with an evaluation of 10 percent, effective from February 1992. The veteran appealed all four claims, and the case is now before the Board. I. Increased Rating for Residuals of Frostbite of Feet Although the Board must consider the whole record, see 38 C.F.R. § 4.2 (1993), those documents created in proximity to the recent claim are the most probative in determining the current extent of impairment. See Francisco v. Brown, 7 Vet.App. 55, 58 (1994). In this regard, the Board will consider principally medical evidence following the reopening of this claim in February 1992. Service medical records reveal that in December 1950 while in combat in Korea, the veteran suffered from frostbite of both feet. After evacuation, he was eventually admitted to the United States Naval Hospital in Pensacola, Florida, with an admission diagnosis of frostbite, feet, bilateral. It was noted that the veteran had frostbite of both big toes. The right toe had an area on its inner surface that was black. The left big toe was pink, but an outer layer of skin had been sloughed off. There was no pain or itching. By February 1951 the disorder was "relatively asymptomatic." On February 26, the veteran was declared fit for duty and was discharged from the hospital. In March 1992, the veteran underwent a VA disability evaluation examination, which included a special examination of his feet. He reported that he had frostbite of his feet while he was in Korea in 1950. He said that since then his feet hurt, especially when he stood for more than one hour and that his feet became extremely cold during cool weather, especially in air conditioned rooms. He described pain like "a needle-like hurting type of pain," which was confined to the sub first and fifth metatarsal heads. A physical examination showed no hypo- or hyper- pigmentation node and no calluses. On vascular testing, there was a normal capillary fill time of approximately three to four seconds, bilaterally. Neuromuscularly, the sensories were normal and the motor functions within normal limits. Musculoskeletal examination showed a hallux abductor valgus, bilaterally, stage II, and a flexible metatarsal joint. There was 40 degrees of hallux dorsal flexure, bilaterally. A skin physical examination showed the toenails to be thick and yellow. Reports of x-rays showed some degenerative joint disease of the great toes of both feet and of the distal interphalangeal joints of the second to the fifth digits of both feet. The diagnostic impression was hallux limitus, that is, degenerative joint disease of the great toe bilaterally; sequela frostbite, by history of veteran; vascular within normal limits; sensory and motor functions within normal limits. During his October 1992 hearing before the RO, the veteran testified that his feet became painful and had a burning sensation after prolonged standing. He added that his feet occasionally cracked wide open and were often rough, like sandpaper. Sometimes they became red and once in a while they swelled. It was noted that his feet were a pinkish color. He also claimed that both feet were somewhat tender to the touch. In evaluating service-connected disabilities, the Board looks to functional impairment and attempts to determine the extent to which the veteran's disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the medical findings contained in the claims file to the criteria in the VA Schedule for Rating Disabilities. See 38 C.F.R. §§ 4.1, 4.2, 4.10 (1994). The veteran is currently evaluated under 38 C.F.R. § 4.104, Diagnostic Code 7122, relative to the residuals of frozen feet. Under this code, the loss of toes or parts, together with persistent severe symptoms warrants a 50 percent evaluation for bilateral impairment and 30 percent for a unilateral impairment. With persistent moderate swelling, tenderness, and redness, a bilateral impairment may be assigned a 30 percent disability evaluation and a unilateral impairment a 20 percent evaluation. With mild symptoms and chilblains, either bilaterally or unilaterally, the evaluation is 10 percent. A review of the veteran's medical records does not show the loss of toes or of any portion of his feet or of persistent severe symptoms. Hence, the highest schedular evaluation is not warranted here. Examination of the veteran's feet showed no swelling but, as noted at his hearing, his feet were of a pinkish color. He reported tenderness in both feet. Having reviewed the evidence of record, including hearing testimony and examination findings, the Board is of the opinion that the disability picture associated with the residuals of frostbite of the feet more nearly comports with the criteria for a 30 percent evaluation. However, the record does not show an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization which would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b) (1) (1994). Accordingly, the Board finds no basis for granting a disability evaluation greater than 30 percent for the residuals of frozen feet. II. Service Connection for Tinnitus Service medical records contain no evidence of tinnitus in service. The veteran's June 1948 induction examination noted a hearing loss in the right ear by voice testing of 8/15. A February 1951 report from the United States Naval Air Station reported that the veteran had been examined on that date and found to be physically qualified for service, although defective hearing was found in the right ear of 8/15. A separation examination in June 1952, however, showed normal hearing of 15/15 in both ears by voice testing. There were no records referring to acoustic trauma or any other complaints of ear trouble or hearing difficulties during service. During his VA disability evaluation examination in March 1992, the veteran's ears were examined and his hearing tested. An otological examination noted that the veteran had worked as a pipe fitter exposed to loud noise for many years and that he sometimes used ear plugs at work. He had stopped working five years prior to the examination because of weakness of his legs. At the time of the examination, he did not wear a hearing aid or use ear drops. Observation showed that the external auditory canals were clear and dry. The ear drums appeared to be within normal limits, with no evidence of old or recent inflammation in either ear. The examiner concluded that the veteran's ears were normal. An audiological examination report, dated in March 1992, notes the veteran's history of having served in the Marines from 1952 to 1958. His military occupation specialty was rocket launcher. The veteran claimed that during the Korean Conflict he had suffered frostbite on his feet and, while awaiting treatment, was placed next to a battery of 105 howitzer cannons, which fired constantly. He reported hearing difficulty and some fluctuating tinnitus of mild degree since that time, particularly in the left ear, claiming that it sounded "like a steam engine on a ferryboat." He did not think that it was causing him a great deal of difficulty. At his October 1992 hearing before the RO, the veteran testified that after he got out of the service, he noticed his hearing was getting worse and that he had a constant sound in his ears all the time. It sounded just like a ferryboat; sometimes it was loud, and sometimes he could just barely hear it. This sound had begun maybe 15 or 20 years before, and he did not recall hearing it in the service. He reported that after the service he had worked as a pipe fitter in a noisy environment, where he was required to wear ear protectors. The veteran attributed his tinnitus to acoustic trauma while awaiting evacuation from Korea. Service connection means, essentially, that the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was contracted in line of duty coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991). Additionally, service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1994). The claims file shows no evidence of complaints or findings referable to tinnitus during service. The separation physical examination revealed normal ears and no complaints referable to tinnitus were elicited. Additionally, the veteran reported at his hearing that he had not noticed symptoms of tinnitus until fifteen or twenty years before, many years after service. Thus, even though the Board has considered all reasonable doubt in the veteran's favor, it determines that, based on the evidence, service connection has not been established for tinnitus. III. New and Material Evidence for Service Connection for Hearing Loss The United States Court of Veterans Appeals has held that when determining whether new and material evidence has been submitted to warrant reopening under 38 U.S.C.A. § 5108, consideration must be given to all of the evidence submitted since the last final denial on the merits. See Glynn v. Brown, 6 Vet.App. 523, 529 (1994). Accordingly, the Board has reviewed all of the evidence submitted relevant to the issue of service connection for bilateral hearing loss since the final decision of the RO in May 1963. New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156 (1994). In order for a claim to be reopened and the entire record reviewed, the evidence must be "new" and "material." See Manio v. Derwinski, 1 Vet.App. 140, 145 (1991); Jones v. Derwinski, 1 Vet.App. 210, 214 (1991). In Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991), the United States Court of Veterans Appeals stated that new evidence may not be merely cumulative of other evidence on the record. To be material, evidence must be relevant and probative. Rule 401 of the Federal Rules of Evidence defines relevant evidence as "[e]vidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Additionally, there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Colvin, 1 Vet.App. at 174. To reopen his claim for service connection for a hearing loss, the veteran has provided the following additional evidence: (1) an undated letter to the RO from the veteran, received some time in 1987; (2) an October 1987 audiogram from Associates III Speech and Learning Center in Baton Rouge, Louisiana, (3) a VA audiological examination, dated in March 1992; (4) the veteran's substantive appeal, received in September 1992, and (5) the veteran's hearing testimony before the RO on October 14, 1992. All of this evidence is new, in that it had not been previously seen by the RO. It is also relevant to the extent that it relates to the veteran's hearing disorder. Item (1), the veteran's letter, stated that he then was deaf in his left ear and had only 25 percent hearing in his right ear. Items (2) and (3), the 1987 audiogram and the VA audiological examination, both reveal a sensorineural hearing loss, greater in the left ear than in the right. This evidence, although clearly pertaining to a hearing loss, cannot be deemed material, as it provides no nexus, or link, to any incident in service. The earliest of these tests was performed more than 35 years after the veteran's separation from service, during which time the veteran admittedly was exposed to a considerable amount of noise in his work as a pipe fitter. There is thus no reasonable possibility that this evidence, when viewed in the context of all the evidence, would change the outcome of the veteran's appeal. The veteran's substantive appeal, Item (4), and his hearing testimony, Item (5), both state his belief that his current hearing loss was caused in 1950 in Korea while awaiting evacuation. With respect to the veteran's contention, the Board points out that the veteran has provided no objective evidence linking his current hearing disorder to any incident in service, but has merely proffered his personal opinion of causation. Lay assertions of medical causation cannot serve as a predicate to open a previously disallowed claim. See Moray v. Brown, 5 Vet.App. 211, 214 (1993). Since the veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen his finally disallowed claim, the benefit of the doubt doctrine does not apply in this case. See Annoni v. Brown, 5 Vet.App. 463 (1993); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). Accordingly, the Board finds that the additional evidence submitted by the veteran to reopen his claim for service connection is not new and material, and thus, not sufficient to reopen his claim. IV. Increased Rating for PTSD The veteran filed his initial claim for service connection for PTSD in February 1992. His service records show extensive combat experience in Korea, including operations against the North Korean Forces in August and September 1950, the assault and seizure of Inchon in September 1950, and the Wonsan-Hungnam- Chosin Campaign in Northern Korea from October to December 1950. He was awarded the United Nations Medal, the Korean Service Medal, and the Purple Heart Medal. Service connection for PTSD was granted in June 1992, at an evaluation of 10 percent, effective from February 1992. A special psychiatric examination in March 1992 revealed a reported history of the onset of symptoms in 1958. The veteran had had nightmares and flashbacks of Korea, and loud noises bothered him somewhat. He generally stayed at home, but had never had any treatment for his symptoms. The veteran last worked five years previously as a pipe fitter. A mental status examination noted that the veteran answered all questions in a coherent and relevant fashion. He was well oriented and sensorium was clear. He denied any paranoia, any suicidal or homicidal ideations or any auditory or visual hallucinations, except in relation to Korea. He denied any problem with drugs or alcohol. Recent and remote memory were intact. The veteran appeared to be of average intelligence and showed no evidence of a psychotic process. The diagnosis was post-traumatic stress disorder. At his October 1992 hearing, the veteran testified that he had nightmares about hand-to-hand combat in Korea or being encircled by the Chinese Army, which interfered with his sleeping. He said that he was not currently being treated for a psychiatric disorder and that he had never taken any kind of medication for insomnia or nerves, except for Tylenol occasionally. He stated that he had never missed work because of PTSD symptoms and did not believe that treatment would be of any particular help to him. Disability evaluations are based upon the average impairment of earning capacity as contemplated by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2 (1994). Regulations provide that each disability be evaluated in light of the veteran's medical and employment history, and from the point of view of the veteran's working or seeking work. See Schafrath v. Derwinski, 1 Vet.App. 589, 592 (1991). Post-traumatic stress disorder is evaluated under 38 C.F.R. § 4.132, Diagnostic Code 9411. Under the general rating formula for psychoneurotic disorders, under Diagnostic Code 9411 (1994), a 10 percent disability rating encompasses emotional tension or other evidence of anxiety productive of mild social and industrial impairment. If manifestations of post- traumatic stress disorder result in definite impairment in the ability to establish or maintain effective and wholesome relationships with people and result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment, a 30 percent disability evaluation is assigned. To be equivalent to a 50 percent evaluation, the manifestations of symptoms should be of such severity and persistence that there would be a considerable impairment of the ability to obtain or retain employment. A 70 percent evaluation requires that the psychoneurotic symptoms be of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. For a 100 percent evaluation to apply, the symptoms would have to be so totally incapacitating that they border on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities; the veteran would need to show a demonstrable inability to obtain or retain employment. In terms of the veteran's symptomatology, the Board points out that the veteran was regularly employed until his early retirement. Although he complained of nightmares, insomnia, and anxiety, he reportedly had not missed any work due to a psychoneurotic disorder. He did not report difficulty in interpersonal relationships, nor had he felt the need for treatment or medication. Thus, the veteran does not appear to suffer considerable social or industrial impairment, nor does the record show an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization which would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b) (1) (1994). Accordingly, the Board finds that the currently assigned evaluation of 10 percent most closely approximates the veteran's current degree of impairment. ORDER An increased evaluation of 30 percent for residuals of frostbite of the feet is granted, subject to regulations governing the payment of monetary benefits. Service connection for tinnitus is denied. New and material evidence not having been submitted to reopen a claim for service connection for bilateral hearing loss, service connection for this disorder is denied. An increased evaluation for post-traumatic stress disorder is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.